Commentary: Darfur Deserves its Day in Court

Originally published in the Chicago Tribune on January 25, 2005, MacArthur President Jonathan Fanton calls for the United Nations to take action on the situation in Darfur.

This month, the world was shocked by a natural disaster in South Asia. The outpouring of humanitarian assistance is a testament to what can be accomplished by the international community when it finds the will to act. We will soon learn if the will exists to confront a man-made disaster in Western Sudan.

Last May, I wrote in these pages about 30,000 Sudanese dead in Darfur, the victims of ethnic cleansing. Since then, 50,000 more have died and some 2 million have been displaced, most of them now struggling to survive on the brink of starvation. On Tuesday, the United Nation's Commission of Inquiry will present its report on violations of international humanitarian and human rights law in Darfur, on allegations of genocide, and on the identities of those responsible. After the presentation, the UN Security Council will have an opportunity to refer Darfur to the International Criminal Court. Without reservation or delay, it should do so.

Almost a year has passed since the world began to learn of the ethnic cleansing taking place in the Darfur region of Sudan. The violence has been perpetrated by Janjaweed militias, which are armed and directed by Sudanese authorities. Government troops have also assisted with the murder and displacement of thousands of civilians. Despite three UN resolutions condemning the violence and a report from the U.S. State Department that found evidence of genocide in Darfur, little action has been taken to stop the killing.
Meanwhile, the Sudanese government and the militias it directs carry on their deadly work largely unencumbered. Some African Union forces have arrived in Darfur, but their numbers are too small to be consequential: Even the full contingent of 3,500 will be barely enough to guard the refugee camps, let alone protect the civilians still living in the region or return the displaced to their homes.

The credibility of the international community-¬especially the UN, but including the United States--is at stake in Darfur. Voices have been raised, diplomatic pressure has been applied, genocide has been declared by the secretary of state. But since nothing has changed on the ground, all of this talk must be followed by action.

Short of military intervention, there are still a number of steps that would bring meaningful pressure on the government in Khartoum. On Tuesday, the Security Council will have an opportunity to take them.
For instance, the number of African Union troops should be increased and given a clear mandate to protect Sudanese civilians from harm. An international arms embargo should be imposed on the Sudanese government to stem the flow of weapons to the Janjaweed militias. And equally important, the UN Security Council should refer Darfur for Investigation by and possible prosecution at the International Criminal Court. The court has a mandate to try cases of genocide, war crimes and crimes against humanity where national courts are unwilling or unable to do so. It was designed precisely for situations like Darfur.

Identifying the architects, indicting them and beginning the process of determining their guilt or innocence is a powerful tool at the disposal of the Security Council. It should be used in Sudan to marginalize the planners and disrupt their operations.

The ICC would be by far the most efficient and effective way to pursue those who are orchestrating war crimes in Darfur. As a standing institution that has already opened investigations into violations of humanitarian law in Uganda and Congo, it has the Infrastructure in place to take up the cases in Western Sudan: investigators, prosecutors, Judges. An investigation by the ICC could help protect the civilians who remain in Darfur, keep the Janjaweed from consolidating its territorial gains, and assist humanitarian groups to work unmolested in devastated areas.

The U.S. has led the world in criticizing Sudan's government, but it may be a major obstacle to referral by the Security Council. The U.S. has opposed the ICC as an institution because it fears that a strong court might be used some day to stage political show-trials against American soldiers and citizens. These worries are misplaced: the court only has jurisdiction when other legal forums are not available, and, in any case, there are no Americans implicated in Darfur. U.S. opposition to the ICC should not be allowed to deny the victims of Darfur access to the only court that can hear their claims, provide them justice, and deter further crimes.

The ICC passes judgment on acts that have already been committed, and the ethnic cleansing in Darfur is ongoing. But a referral to the court could help curtail the violence by presenting a very real threat of imprisonment, frozen assets, and international isolation to Sudan's leadership. With more than 2 million people currently at risk of attack or starvation, we cannot wait until the killing stops to bring justice to Darfur. By then it will be far too late.

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